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tv   [untitled]    July 3, 2013 11:00am-11:31am PDT

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then our own memo putting it in front of us, and maybe, maybe that is just informal guidance and we change and we can go back and make a motion that says, we do or do not find miss patterson responsible for whatever of the three things that we think that she might be responsible for. and i say that because she has stepped up to one of them. and but as to the other two, whether we have given the papers in front of us can we find the arts commission responsible if that is our determination two or three. >> what is the march 7th letter. >> the user's association and the defendant ant is the arts commission. >> right. >> and so, i think that we could fine the arts commission, by. >> right. and i am talking about this, so maybe we just don't track this, that is, and mr. warfield's comments and maybe this is not,
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this is just a description or a summary for us and we ignore that and i think that we go back to the referal and we develop whatever motions we want in which case we could hear it tonight unless for another reason we decided not to. >> and that might answer my question and mr. warfield's that we operate on the basis of the referal and not the staff memo. would that... i would be interested in mr. warfield's thought on that one. >> if we return back to the referal as a complaint by the library users association against the arts commission? is that what you are urging us to do as a better procedural stance? >> yes. but that would require you to use a different portion of your rules and i did forget commissioner hur that under section three, not only would you be much more able to
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recognize who is the responsible party, mainly the art commission head. but, there is also a provision for staff investigation, which is not the case for a chapter two, repeating, so there is a whole different procedure that you have, with respect to these matters. and the other thing is that i would like the record to be clear. i think that mr. st. croix's memo completely confuses matters and then the agenda packet, makes it look as although everything was kosher when it was not. you have talked about it, i mean, look at the e-mails i was writing on behalf of the library users association, to whom, the secretary of the arts commission. why? is poor miss patterson according to mr. st. croix the
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respondent of my complaint? read my complaint in here. it says, arts commission. so the whole thing is skewed and you are being distracted by a whole bunch of questions in the midst of all of the subnative questions because mr. st. croix has framed it as one individual against another individual and that is just wrong on every level including as i said, your own staff doing the reach and presumably some, i don't know what you call it, some efforts and so i think that this whole hearing is tainted by that whole mess and moves to be properly done. >> yes? >> hopefully, it can provide a little clarification as to why mr. patterson was the named respondent. our regulation was responded do not allow us to name a agency,
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we have to name an individual, as a city officer or a employee to write down the complaint. and just to have committed the violation. and she was the complainant, and she was the only one named in the complaint and the staff has not permitted to us when they were not in the department head and the investigation, and he may or may not have the responsibility and if it requires, and that is something that she will consider as of now, and it says that it has to be a person is not an agency. >> and with that said, would you, because there are three different kinds of violations that are in here. and like miss patterson talked about the fact that she missed a particular deadline and i think that covers that and i
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want to hear about the internal discussion that was had that ultimately led to the alleged allegations of two and three, like what conversations were had and were these and was the determination, and was the conversation between miss patterson and the city attorney's office was the department head a part of that meeting. >> thank you, for allowing me to clarify that. i first want to clarify that the failure to meet the idr was a failure on the part of the commission secretary who gathered those materials for mr. warfield. and you know, she did so, in consultation with myself and the director of the public art program and the director at the time, cd and so the conversations were basically, we all looked at each other and decided to conduct the city attorney on guidance on what to do with the private information and i would say that the deciding factor was the advice
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of the city attorney on what to do with the private information rather than it being a decision made by the dekter specifically or the director of the public art program specifically. we just acted on the advice of the city attorney. and so, i did fail to respond to the order of determination in a timely fashion. so that is mea copa and so does that... >> does the commission know about it, were you reporting on a... >> yeah. >> on a basis of where you were with it. >> yeah, i mean, it was not that complex, i think that there were some e-mails that went back and forth about what to do and i think that there was a request made about the director if i recall correctly and i believe that mr. warfield has the e-mails to get advice from the city attorney. i did so and the sad vice was to redact the private
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information. >> so, in the cc, what seemed to you you would just put somebody has to be ultimately in control. so in every cc, we should put the department head or the commission head, because they were knowledgeable of the activity that was happening. and the engagement that you were having with the city attorney. >> yes. >> the staff is not agreeing with that. you are shaking your head? >> the cc task commission and we are not naming the people and from the task force and so the order of the determination of the cc is okay, kate patterson and the referal of the cc, and that is where we are getting the information from and directly from the referal and so we are not just to eliminate and name the agency as the complainant or the respondent. >> that is what i am saying. >> it was their responsibility in some kind of a way. throughout that investigation the task force to figure out
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that aspect of it. in which it would be a department head and then, that, i would suspect possibly a letter or an e-mail that would give miss patterson authority to represent the commission on all aspects of it. on all three things that we are talking about, rather than just, it seems as if we have one piece of it we just don't have, i hate to say it, i person to name on the other aspects that are alleged violations. >> so, how should we handle this? >> mr. st. croix do you have a suggestion? >> i think that in terms of the first violation, you know, there is not a contest. >> do we have a finding. >> in terms of the other two, if you wants, additional information to the staff and to gather if you could refer it back to staff under section 3.
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and staff will do whatever investigation they need to do to find further information, to identify in this case who the actual custodian records is. the sunshine ordinance identifies the custodian records as the person responsible. so, when do they do that? >> section 67.21. >> section b. it names a custodian of the public records shall as soon as possible in ten days of following the receipt of the request for inspection or a copy of a public record to comply with requests >> miss patterson, are you that person for the arts commission? >> sorry? >> just repeat the question? >> are you the custodian of records for the arts commission? >> i am acting in that capacity. i mean by the definition that you put forward, this evening.
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>> okay. >> i mean if that is the case, and you know, i leave it to the chair as how many more comment to take on it, it seems like we have the right person here to make a determination on these matters. i mean, whether or not we need down the road to clarify, the ordinance is perhaps another matter, but here i think that we are within the meets and bounds to make a decision. do you want to make a motion to that effect? >> is there comments or questions on this? before we do that? >> and the permits. i understand what mr. warfield is saying about the phone number or the address, it does not appear to be in the same category as the medical record
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and on the other hand it provided by the arts commission that there is a right of privacy relating to one's address. so in this case, i would favor a finding that there was no violation for failing to disclose the address. >> we have not talked about that and i put my views out there. >> and i guess that one of the things ateps coming up and that is i hear what is being said is that regardless of what legal advice for what's commission or an agency if the task force says that we don't agree with that advice it will control and i can't believe that is the law. that the task force should go to the court and get the court
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to concern that whether i can make a decision of whether, something is not private. and if the city attorney... and that information is private. and i don't know what gives me the authority so say that the city attorney is wrong and i am ordering them to treat it as public. maybe i am, maybe i am troubled in so many of these cases, the city attorney has given an opinion or advice to an individual or a commission or an agency and and the force takes issue with that. but when it comes to us, where in the ordinance that i am
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going to over rule the city attorney. >> and i may be wrong. >> and i agree, it does not make any sense, why do we have a city attorney in that case. >> what is it? >> section 67.21, e, for edward. says that if the custodian refuses to comply or completely combines or if it is not acted on by the civil branch of the public record, the person making the request that would be me, that the petition task force for determination and the record request is public, and the sunshine task force shall inform the petition ner as soon as possible and in as soon as the next meeting no case, later than 45 days when it is
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received of its determination of whether the record request or part of the record requested is public. the petitioner were desirable and it shall be in writing. upon the determination that the record is public and the sunshine task force shall immediately order the custodian to comply with the person's request. if the custodian fails to comply, in five days, the task force should identify the attorney general who may take whatever measures that he or she determines is necessary for the compliance with the provisions of the ordinance and this ordinance and the board of supervisors and the city attorney shall provide the sufficient staff and resources to allow the sunshine task force staff to fulfill this duty under this provision. >> it talks about those. >> thank you. >> thank you. >> this is where it says the task force says or makes a determination or an order.
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>> commissioner studley? >> the reading refers to a determination about whether a document or information is public. that requires a legal determination, legal determination as i understand it is required by the city attorney by city charter has the responsibility for helping make a legal determination about whether it is public. and that is not, what the task force is determination. if it is public, the task force has the responsibility to help carry out its responsibility in the process to have it brought forward, made public. but, i see it is a little determination about whether it is public and in interpreting the rules about what is exempt and what is public. >> i think that at least for me, that may be where the answer comes in about this very
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tense and complicated understanding about what the responsibility of the city attorney and the elected charter defines the responsibility of the city attorney and the legal responsibilities of the task force. >> and that is probably a broader question that is maybe needs to be worked out. i don't know that we need to decide that in order to adjudicate this matter. >> i wonder, madam chair would it help to moves thing along if i make a motion with regard to the first of the three items. >> where we stand on these issues? >> i would agree with that. if we die vied it up it is the easy way to move forward. >> on the first matter i will entertain a motion to that effect. >> i move that we find, is it a violation of the ordinance? >> yes. >> we find a violation of the sunshine ordinance section 67.25 a for failing to respond
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to an immediate disclosure request in a timely manner by miss patterson of the arts commission. >> is there a second? >> i will second. >> public comment? >> commissioners, ray hartz, director of san francisco government. 67.30 the sunshine ordinance subsection c. the task force shall advise the board of supervisors and provide information on other city departments on appropriate ways in which to implement this chapter. that is the authority that the sunshine task force has. does the city attorney have the ability to over or to review and override those? yes he does, but he needs to give a legal justification he can't just say which he did in the case of 150-word summaries i say my opinion is different. he did not site any law or any
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statue or any justification, i will go back to mr. hur's argument i will now send all of my idr and my information requests and anything that i have directly to the department head and specifically with the department head because that is the person who receives annual sunshine training and annual sunshine declaration and has the responsibility as the department head to insure everyone in the department follows the law. if someone does not follow the law, it is his or her responsibility. i was in the navy, in the submarine service, for 12 years and one lesson that we learned is that delegation is not advicati. on. >> if you named the director or the head of the department they are the ones who are responsible either directly or in directly for sending the person to deal with this issue or to answer for this issue.
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>> responsible for sending miss patterson and unfortunately that is an out for them because what they do often is some people who have absolutely no idea, no idea what is going on in this situation and show up and get asked questions that they can't answer. >> and that is why i avoid all of this discussion because i say that it is the department head. and the department head cannot hear or her department that the law is implemented appropriately. the buck stops there. >> in the navy if a commanding officer if someone does something and sinks a ship and runs to the ground, and the board of inquiries that i did not do it and it was a seaman he would be dead on arrival. >> so the bottom line s these things are not that complicated. they have a responsibility under the law it has been in
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place since 1999. and they still do this oh, we don't understand and no it is this person and that person, and if you asked direct questions to a person, they go, oh, we are not obligated to respond. but, everything is done to avaid that responsibility. >> any further public comment? >> let's call the question. >> all in favor? >> aye. >> aye. >> aye. >> the motion passes unanimously and we find miss patterson has failed to respond in a timely manner and she acknowledged as much as so. >> we will move on to the next one. >> should we take the next two
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together? >> they go hand in hand, there was no requirement to turnover the information and we can say that they are required to follow the order, if there was a requirement then clearly she did not follow the order. so i think that the answer to the second question is going to be the same as the answer to the third. >> how are you phrasing the second and the third questions? >> the second question is whether they were permitted to redact the information. >> the arts commission? >> the arts commission. >> and the third is whether the arts commission failed to comply with the sunshine ordinance task force requiring to disclose it in five days. and these two, and directing to the arts commission as an entity and as opposed to miss patterson.
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>> i think... i mean i recognize that it is complicated because of what the regulations say, i mean i think, that we intended that the arts commission failed to comply with something and it would be the arts commission who would ultimately be... >> that is what the sunshine task force intended is to be directed at the arts commission. >> right. >> not at some employee of the arts commission. >> right. >> yeah. >> and i think that in this case, it sounds like miss patterson had the authority and the ability to comply with both of the second and third matters. so in any event, i think that she would be the right person. but i don't know that we need to... >> right. >> and it was she that consulted with the city attorney and got a view from
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the city attorney that these... >> and also the commission and the secretary. and that... >> involved in that conversation. >> that these... that this information should not be provided. not that they did not have be provided but that she should not be provided is our understanding. >> and it was the department head that agreed to that, i know that the conversation was had between miss patterson and the secretary and the city attorney. and then, at some point there was a conversation with the department head that said consulted with the city attorney, and this is our, this is the determination and we just need your sign-off and your approval, make you aware of it. because there was an opportunity for him to say no, but... >> miss patterson? >> so, just to clarify, again, the department head deferred to
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the city attorney. and asked me to ask, you know, there was multiple conversations, the con census was that between the director of public arts the commission secretary and the director, that we should all consult with the city attorney and we deferred to that advice. >> and the information that was redacted consisted of what general category? s >> personal addresses, and also, personal e-mail addresses. business addresses that were obviously business addresses, like the director of film arts provided a comment card and provided the address which is a cultural center that was retained. >> now after you provided the redacted cards, and then, the sunshine task force... with the
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fact that you redacted information. now before we get to that, did you advise the sunshine task force or anyone before you provided the information that you would in fact redacted the information? >> yes. >> that is standard practice, every time that we need to make a redaction, we... >> how did you give that advise? >> i gave it to mr. warfield what he has an issue with is thatdy not itemize the redactions and provide rationale and so it was presented in a general fashion. >> and after the task force held its hearing and came to the conclusion that you were wrong, did you, consult with the city attorney. >> yes, i did it late, but i did consult again to double
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check that we acted appropriately and was advised the same advise essentially. >> further public comment? >> is that necessary? >> i don't know that we need for you to respond. >> miss patterson said that they indicated that there were redaction and that is one of the unfortunate things that they did not. you will see that she showed you a speaker card with someone whited out because you can see a line where something was missing there was no notation or know indication that speaker card had anything redacted or shown any explanation. so i don't know what she is talking about. now, it so happens that i have nothing to do with miss patterson at the time. it was all between me and sharon page, richie who you can see in the correspondent is the commission secretary, she was the one that was handling all
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of these matters and not miss patterson. and so, i don't know what miss patterson is talking about or at what time. but when those materials were turned over there was no indication that there was any redaction or nor was there any general or in the particular intans of the cards, it was a complete surprise to me and it is quite upset when i saw that the actual card had white strips pasted over there because from the photo copy, it was not at all added to anything. >> you have indicated that previously. >> thank you. >> all right. >> and anything further? >> discussion on this? >> do i hear a motion? >> i second. >> second. >> and i just want to read, i am just reading some of the documents.
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>> okay. >> thank you. >> okay. could i just be clear that on december the 20th, when you were reviewing mr. warfield, did you have no indication that the petition made no indication there was any redacting of any of these aders, you never knew of that. and i understand that it is the white instead of a black it could be pink and purple. >> and it is a black line or something. and or something, that were visible, but with the photo copies as i think that you saw there. the only indication was that if you knew to put two and two together, and see that there was a line. and even if there was visible, a label for the line you could not tell was anything placed or not placed there. >> and no one said anything. >> that is why and i remember being very upset as i say when i was handed the photo copies
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which looked like what i had received electronically and i said, would i like to see the cards and so miss sharon page, richie left the room that she had me in a conference room and disappeared for quite a while, returned with a stack of cards. and those cards now because you could feel them even if you were blind, you could see that there were i don't know, what you call those, i don't think that it was one of those typewriter correction tapes, white tape, three 8th of an inch in width had been pasted over the cards and i was flabergasted because nothing had been initiate or indicated and if i searched through here if that is an issue, i could perhaps find it in other documents but i do recall that sense of absolutely being stunned, that there was a trick being played by giving me and remember, that i came in personally to see the original documents which i am entitled
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to see under the sunshine and i was handed a stack of photo copies >> and this happened on the same day of the reviewing of photo copies and the original. >> i believe that the one that she gave me the photo copies i said here in the office i have made a trip and i want to see the originals. >> i am look the at a document that is an e-mail. and who from, but it says when we, i think that this is the library users association, when we insisted on reviewing the original documents in the office and not just the photo copies, we found the white pieces of paper over half of the cards and contact information had been provided by the speakers and no explanation in the written materials, only when we asked about the originals were we told that these were brackets closed kaublt confidential personal